u.s. army corps of engineers · pdf file21-02-2006 · define nature and extent of...

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US Army CorpsUS Army Corpsof Engineersof Engineers CWA SummaryCWA Summary

•• CWA and Waters of the U.S. CWA and Waters of the U.S. •• SWANCCSWANCC decisiondecision•• GAO reports on postGAO reports on post--SWANCCSWANCC activitiesactivities

–– Reports in 2004 & 2005Reports in 2004 & 2005–– Corps surveys and other responsesCorps surveys and other responses

•• RapanosRapanos & & CarabellCarabell decisiondecision

US Army CorpsUS Army Corpsof Engineersof Engineers CWA & Waters of the U.S.CWA & Waters of the U.S.

•• CWA goal:CWA goal:–– Protect the biological, chemical and physical functions of Protect the biological, chemical and physical functions of

our nationour nation’’s waters of the U.S. s waters of the U.S.

•• Waters of the U.S. Waters of the U.S. –– Traditional navigable waters Traditional navigable waters –– Interstate waters including interstate wetlands Interstate waters including interstate wetlands –– Other waters including intrastate, nonOther waters including intrastate, non--navigable waters navigable waters

with interstate/foreign commerce connectionswith interstate/foreign commerce connections–– Impoundments of waters otherwise defined as waters of Impoundments of waters otherwise defined as waters of

the U.S.the U.S.–– Tributaries of the aboveTributaries of the above–– Territorial seasTerritorial seas–– Adjacent wetlandsAdjacent wetlands

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US Army CorpsUS Army Corpsof Engineersof Engineers

CWA Section 404: A Short History•• 1972 Enacted1972 Enacted•• 1974 Regulation1974 Regulation•• 1975 NRDC vs. Calloway. Interim regulation1975 NRDC vs. Calloway. Interim regulation•• 1977 Regulation & Congressional Amendments1977 Regulation & Congressional Amendments•• 1979 Civiletti decision1979 Civiletti decision•• 1985 Riverside v. Bayview Homes. 1985 Riverside v. Bayview Homes.

EPAEPA’’s Migratory Bird Memos Migratory Bird Memo•• 1986 Preamble on 1986 Preamble on ““Migratory Bird RuleMigratory Bird Rule””•• 2001 Supreme Court decision in 2001 Supreme Court decision in SWANCC v. USACE SWANCC v. USACE •• 2003 ANPRM & Rulemaking2003 ANPRM & Rulemaking•• 2004/5 GAO reports2004/5 GAO reports•• 2006 2006 RapanosRapanos & & CarabellCarabell U.S. Supreme Court casesU.S. Supreme Court cases


Solid Waste Agency Solid Waste Agency in Northern Cook County in Northern Cook County

(SWANCC) vs. USACE.(SWANCC) vs. USACE.

2001 Supreme Court Decision in 2001 Supreme Court Decision in SWANCC SWANCC •• Corps determined CWA jurisdiction over abandoned Corps determined CWA jurisdiction over abandoned

gravel pits by use of Migratory Bird Rule (MBR) gravel pits by use of Migratory Bird Rule (MBR) •• MBR based on blue heron use of ponds.MBR based on blue heron use of ponds.•• Holding:Holding:

–– Reasoning could be extended further: CWA intended some Reasoning could be extended further: CWA intended some connection to navigabilityconnection to navigability

–– Did not invalidate existing regulationsDid not invalidate existing regulations–– Has implications for all CWA programs, not just Has implications for all CWA programs, not just §§404404

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SWANCCSWANCC Jurisdictional Jurisdictional IssuesIssues

EphemeralIntermittent

Erosional Features

Sheetflow or snowmeltPerennial

Pumps? Pipes?

Sheetflow over upland?

Storm Drain Systems?

Subsurface Flow (discrete)?

How Far Upstream

Included as “Tributaries”/ Waters of U.S.

Ditches?

Groundwater (non-discrete)?

Hydrology: Overflows during

rain events?

Aquifer

Adjacent Wetlands: Proximity or Hydrology

Proximity: How far?How many berms?

Hydrology: Direct & immediate subsurface infiltration (not groundwater)? No connection to Aquifer

Migratory Bird Rule


SWANCC & RulemakingJan 03: ANPRM solicited public comments Jan 03: ANPRM solicited public comments on issues associated with CWA jurisdictionon issues associated with CWA jurisdiction–– Appendix AAppendix A–– 130,000 comments received on notice; 130,000 comments received on notice;

majority opposed rulemakingmajority opposed rulemakingDec 03: Announcement to discontinue Dec 03: Announcement to discontinue rulemakingrulemaking

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GAO Studies on CWA PostGAO Studies on CWA Post--SWANCCSWANCCImplementation ProceduresImplementation Procedures

2004 Study2004 Study

JD Consistency?JD Consistency?

Request by:Request by:

Congressman Congressman OseOse

2005 Study2005 Study

NN--JD Consistency?JD Consistency?

Request by:Request by:

Senator LiebermanSenator Lieberman


GAO 2004 Study GAO 2004 Study ---- FindingsFindings

Report finalized in February 2004Report finalized in February 2004–– www.gao.gov/cgiwww.gao.gov/cgi--bin./getrpt?GAObin./getrpt?GAO--024024--297297

GAO conclusions:GAO conclusions:–– Corps Corps jdjd practices are inconsistentpractices are inconsistent–– Insufficient documentation practicesInsufficient documentation practices

Report recommendationsReport recommendations–– Require more documentation on district Require more documentation on district jdjd decisionsdecisions–– Survey all district Survey all district jdjd practicespractices–– Evaluate whether and how differences resolvedEvaluate whether and how differences resolved

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Army/Corps Response Army/Corps Response to 2004 GAO Reportto 2004 GAO Report

•• Consistency: partially concurred with Consistency: partially concurred with findings findings

•• Agreed to:Agreed to:–– Conduct a comprehensive survey to Conduct a comprehensive survey to

inventory district practicesinventory district practices–– Develop an adaptive management plan to Develop an adaptive management plan to

provide clarity on JD practicesprovide clarity on JD practices


Corps ActionsCorps Actions

•• Created standardized Created standardized jd/njdjd/njd reporting reporting formsforms

•• Required districts to post final actions Required districts to post final actions on their web siteson their web sites

•• Collected and analyzed data on Collected and analyzed data on njdnjdwaters waters

•• Revising Revising jd/njdjd/njd formsforms

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Survey # 1Survey # 1

First Survey: All 38 Districts Queried First Survey: All 38 Districts Queried Qualitatively [May 2004]Qualitatively [May 2004]

•• Identify district procedures for JDsIdentify district procedures for JDs•• Compare/contrast district Compare/contrast district

level case studieslevel case studies•• Determine ruling litigation Determine ruling litigation

cases cases

Results: Results: –– More questions than answersMore questions than answers–– Another survey?Another survey?

US Army CorpsUS Army Corpsof Engineersof Engineers Survey # 2Survey # 2

Define nature and extent of regional Define nature and extent of regional variation for tributaries, connections, variation for tributaries, connections, and adjacencyand adjacency–– Define practicesDefine practices–– Identify practices Identify practices –– Review legal Review legal

applicationsapplications

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US Army CorpsUS Army Corpsof Engineersof Engineers Survey #2, cont.Survey #2, cont.

Survey: 100 pagesSurvey: 100 pages–– Districts provided 30 days to completeDistricts provided 30 days to complete

Survey is:Survey is:–– A data inventory toolA data inventory tool–– Not guidanceNot guidance–– Not to expand/contract jurisdictionNot to expand/contract jurisdiction


Survey #2, cont. Survey #2, cont.

DataData–– 3800+ pages of data3800+ pages of data

Draft Draft

Technical Findings Technical Findings

on CWA on CWA

Jurisdiction Jurisdiction

Not for ReleaseNot for Release

Draft Draft

Technical ManualTechnical Manual

on CWA on CWA

Jurisdiction Jurisdiction

Not for ReleaseNot for Release

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US Army CorpsUS Army Corpsof Engineersof Engineers GAO 2005 StudyGAO 2005 Study

The 2005 study requested by Senator The 2005 study requested by Senator Lieberman:Lieberman:–– Mapped and identified data collection efforts to Mapped and identified data collection efforts to

support JD process support JD process –– Summarized actions taken under 33 CFR Summarized actions taken under 33 CFR

328.3(a)(3) 328.3(a)(3) –– Reviewed data collection efforts taken to Reviewed data collection efforts taken to

comprehensively characterize the aquatic resource comprehensively characterize the aquatic resource losses associated with SWANCClosses associated with SWANCC


GAO 2005 Study GAO 2005 Study ---- FindingsFindings

GAO report publicly released October 2005GAO report publicly released October 2005–– Available at Available at

www.gao.gov/new.items/d05870.pdf www.gao.gov/new.items/d05870.pdf

GAO recommendationsGAO recommendations–– Corps and EPA finalize guidance establishing Corps and EPA finalize guidance establishing

process for HQ approval of JD calls based process for HQ approval of JD calls based solely on (a)(3)solely on (a)(3)

–– Corps require detailed rationales for noCorps require detailed rationales for no--JD JD decisionsdecisions

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2 U.S. Supreme Court decision 2 U.S. Supreme Court decision (21 Feb 06)(21 Feb 06)

RapanosRapanos.. Determine if wetlands having a Determine if wetlands having a surface hydrologic connection to a mansurface hydrologic connection to a man--made ditch that drains into traditional made ditch that drains into traditional navigable waters are waters of the U.S.navigable waters are waters of the U.S.

CarabellCarabell. Determine if a wetland is . Determine if a wetland is ““adjacentadjacent”” if separated by a manif separated by a man--made made bermberm from a tributary (i.e., a manfrom a tributary (i.e., a man--made made ditch) to navigable waters. ditch) to navigable waters.


RapanosRapanos & & CarabellCarabell

•• A split Supreme Court vacated and A split Supreme Court vacated and remanded the judgments back down to remanded the judgments back down to the Sixth Circuit Court of Appeals. the Sixth Circuit Court of Appeals.

•• The justices issued five opinions in The justices issued five opinions in RapanosRapanos (one plurality opinion, two (one plurality opinion, two concurring opinions, and two dissenting concurring opinions, and two dissenting opinions), with no single opinion opinions), with no single opinion commanding a majority of the Court.commanding a majority of the Court.

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The plurality concluded that the The plurality concluded that the agenciesagencies’’ regulatory authority should regulatory authority should extend only to extend only to ““relatively permanent, relatively permanent, standing or continuously flowing standing or continuously flowing bodies of waterbodies of water”” connected to connected to traditional navigable waters, and to traditional navigable waters, and to ““wetlands with a continuous surface wetlands with a continuous surface connection toconnection to”” such relatively such relatively permanent waters. permanent waters.



Justice Kennedy agreed with Justice Kennedy agreed with plurality that the statutory term plurality that the statutory term ““waters of the United Stateswaters of the United States””extends beyond water bodies that extends beyond water bodies that are traditionally considered are traditionally considered navigable. navigable.

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Justice Kennedy concluded that Justice Kennedy concluded that ““wetlandswetlands”” are are ““waters of the United waters of the United StatesStates”” ““if the wetlands, either alone if the wetlands, either alone or in combination with similarly or in combination with similarly situated lands in the region, situated lands in the region, significantly affect the chemical, significantly affect the chemical, physical, and biological integrity of physical, and biological integrity of other covered waters more readily other covered waters more readily understood as understood as ‘‘navigable.navigable.’’


RapanosRapanos & & CarabellCarabellDissenting opinion Dissenting opinion –– Corps regulations are Corps regulations are

reasonable interpretation of CWAreasonable interpretation of CWA

TNWsTNWs and Wetlands adjacent to and Wetlands adjacent to TNWsTNWs

Decision/guidance does not address Decision/guidance does not address SWANCC nor does it affect the Joint SWANCC nor does it affect the Joint Memorandum issued by the General Memorandum issued by the General Counsels of EPA and the Army dated Counsels of EPA and the Army dated January 10, 2003.January 10, 2003.

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Survey #2: Proposed StrategySurvey #2: Proposed Strategy

Guidance DocumentsGuidance Documents

2 Memos2 Memos

Key PointsKey Points

HighlightsHighlights

Qs & As Qs & As

Media ReleaseMedia Release


Interagency GuidanceInteragency Guidanceonon

CWA Jurisdiction CWA Jurisdiction Following the U.S. Supreme CourtFollowing the U.S. Supreme Court’’s Decisions Decision

in in RapanosRapanos v. U.S. & v. U.S. & CarabellCarabell v. U.S.v. U.S.

Summary of Key Points:Summary of Key Points:•• The agencies will assert jurisdiction over the The agencies will assert jurisdiction over the

following waters?following waters?•• The agencies will decide jurisdiction over the The agencies will decide jurisdiction over the

following waters based on a factfollowing waters based on a fact--specific analysis specific analysis to determine whether they have a significant to determine whether they have a significant nexus with a traditional navigable water?nexus with a traditional navigable water?

•• The agencies generally will not assert jurisdiction The agencies generally will not assert jurisdiction over the following features?over the following features?

•• The agencies will apply the significant nexus test The agencies will apply the significant nexus test as follows?as follows?

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US Army CorpsUS Army Corpsof Engineersof Engineers Coordination/Elevation Coordination/Elevation

Process Process Significant Nexus EvaluationSignificant Nexus Evaluation

15 days 15 days -- District/Regional OfficeDistrict/Regional Office15 days 15 days -- DE/Regional AdministratorDE/Regional Administrator14 or 21 days 14 or 21 days –– HQ EPA/Corps/DAHQ EPA/Corps/DA

Isolated WatersIsolated WatersProcess above with copy sent directly Process above with copy sent directly to HQ (HQ review to HQ (HQ review –– 21 days)21 days)


Survey #2: Proposed StrategySurvey #2: Proposed Strategy

JD Form JD Form

GuidebookGuidebook

RGLS RGLS

Supporting DocumentsSupporting Documents

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U.S. ARMY CORPS OF ENGINEERS U.S. ARMY CORPS OF ENGINEERS JURISDICTIONAL DETERMINATION FORM JURISDICTIONAL DETERMINATION FORM INSTRUCTIONAL GUIDEBOOKINSTRUCTIONAL GUIDEBOOK

This document contains instructions to aid field staff in compleThis document contains instructions to aid field staff in completing the Approved Jurisdictional ting the Approved Jurisdictional Determination Form (Determination Form (““JD formJD form””). This document is intended to be used as the U.S. Army Corps ). This document is intended to be used as the U.S. Army Corps of of Engineers Regulatory National Standard Operating Procedures for Engineers Regulatory National Standard Operating Procedures for conducting an approved conducting an approved jurisdictional determination (JD) and documenting practices to sjurisdictional determination (JD) and documenting practices to support an approved JD until this upport an approved JD until this document is further revised and reissued. document is further revised and reissued.

Caribbean Sea, St. Thomas, U.S. Virgin Islands.Caribbean Sea, St. Thomas, U.S. Virgin Islands.

This document was prepared by the Corps and the EPA.This document was prepared by the Corps and the EPA.

US Army CorpsUS Army Corpsof Engineersof Engineers Traditional Navigable Waters Traditional Navigable Waters

((TNWsTNWs))

TNWsTNWs are jurisdictional under the CWA.are jurisdictional under the CWA.

Pacific Ocean, OR

Yellowstone River, MT

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US Army CorpsUS Army Corpsof Engineersof Engineers Wetlands Adjacent to Wetlands Adjacent to TNWsTNWs

Wetlands adjacent to Wetlands adjacent to TNWsTNWs are are jurisdictional under the CWA.jurisdictional under the CWA.

Pacific Ocean, HI

Wetland separated from WOUS by man-made barrier.

Man-made barrier

Adjacent wetland

Navigable Waters

Mississippi River, MN

Mississippi River, LA

US Army CorpsUS Army Corpsof Engineersof Engineers RPWsRPWs: Perennial & Seasonal: Perennial & Seasonal

RPWsRPWs are jurisdictional under the CWA. As a matter of policy, fieldare jurisdictional under the CWA. As a matter of policy, fieldstaff will include in the record any available information that staff will include in the record any available information that documents the existence of a significant nexus between a TNW anddocuments the existence of a significant nexus between a TNW and an an RPW that is not perennial.RPW that is not perennial.

Wolf Trap Creek, Vienna, VA Grindstone Creek, MO

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US Army CorpsUS Army Corpsof Engineersof Engineers Wetlands Directly Abutting Wetlands Directly Abutting RPWsRPWs

Wetlands directly abutting Wetlands directly abutting RPWsRPWs that flow directly or indirectly into that flow directly or indirectly into TNWsTNWs are jurisdictional under the CWAare jurisdictional under the CWA.. As a matter of policy, field As a matter of policy, field staff will include in the record any available information that staff will include in the record any available information that documents the existence of a significant nexus for a wetland dirdocuments the existence of a significant nexus for a wetland directly ectly abutting an RPW that is not perennial.abutting an RPW that is not perennial.

Un-named water & wetlands, AK Un-named water & wetlands, ND


Wetlands NotWetlands Not--Directly Directly Abutting Abutting RPWsRPWs

Wetlands adjacent to but not directly abutting Wetlands adjacent to but not directly abutting RPWsRPWs that flow that flow directly or indirectly into directly or indirectly into TNWsTNWs are jurisdictional under the CWA are jurisdictional under the CWA where there is a where there is a ““significant nexussignificant nexus”” with a TNW. For each specific with a TNW. For each specific request for wetlands adjacent but not directly abutting request for wetlands adjacent but not directly abutting RPWsRPWs, field , field staff will need to perform significant nexus evaluation to staff will need to perform significant nexus evaluation to determine if tributary is jurisdictional under the CWA.determine if tributary is jurisdictional under the CWA.

WOUS

Dike

Wetland

Un-named water & wetlands, IL

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US Army CorpsUS Army Corpsof Engineersof Engineers NonNon--RPWsRPWs

NonNon--RPWsRPWs are jurisdictional under the CWA where there is a are jurisdictional under the CWA where there is a ““significant nexussignificant nexus”” with a TNW. with a TNW. For each specific request for nonFor each specific request for non--RPWsRPWs, field staff will need to perform significant nexus evaluation , field staff will need to perform significant nexus evaluation to to determine if tributary in combination with its adjacent wetlandsdetermine if tributary in combination with its adjacent wetlands (if (if any) is jurisdictional under the CWA.any) is jurisdictional under the CWA.

Desert ephemeral tributary, CA Unnamed ephemeral tributary, ID


Wetlands Adjacent to Wetlands Adjacent to NonNon--RPWsRPWs

Wetlands adjacent to nonWetlands adjacent to non--RPWsRPWs that flow directly or indirectly into that flow directly or indirectly into TNWsTNWs are are jurisdictional under the CWA where there is a jurisdictional under the CWA where there is a ““significant nexussignificant nexus”” with a TNW. For with a TNW. For each specific request, field staff will need to perform significeach specific request, field staff will need to perform significant nexus evaluation to ant nexus evaluation to determine if tributary is jurisdictional under the CWA.determine if tributary is jurisdictional under the CWA.

Adjacent wetland, SAD Adjacent wetland, AR

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US Army CorpsUS Army Corpsof Engineersof Engineers Isolated Waters & WetlandsIsolated Waters & Wetlands

For each specific request for isolated waters (including isolateFor each specific request for isolated waters (including isolated d wetlands), field staff will need to make a casewetlands), field staff will need to make a case--byby--case case determination on jurisdictional status of resource. HQ concurredetermination on jurisdictional status of resource. HQ concurrence nce required.required.

Isolated wetland, IA


CWA JurisdictionCWA JurisdictionThe significant nexus evaluation will include an The significant nexus evaluation will include an assessment of the flow assessment of the flow

characteristics and functions of the tributary, itself, in combicharacteristics and functions of the tributary, itself, in combination with nation with the functions performed by any wetlands adjacent to the tributarthe functions performed by any wetlands adjacent to the tributary to y to determine if they have more than an insubstantial or speculativedetermine if they have more than an insubstantial or speculative effect on effect on the chemical, physical and/or biological integrity of the chemical, physical and/or biological integrity of TNWsTNWs. .

A consideration of hydrologic factors such as:A consideration of hydrologic factors such as:–– volume, duration, and frequency of flow, including considerationvolume, duration, and frequency of flow, including consideration of certain of certain

physical characteristics of the tributaryphysical characteristics of the tributary–– proximity to the traditional navigable water proximity to the traditional navigable water –– size of the watershed size of the watershed –– average annual rainfall average annual rainfall –– average annual winter snow pack average annual winter snow pack

A consideration of ecologic factors such as: A consideration of ecologic factors such as: –– the ability of the tributary and its adjacent wetlands (if any) the ability of the tributary and its adjacent wetlands (if any) to carry pollutants to carry pollutants

and flood waters to traditional navigable waters and flood waters to traditional navigable waters –– the ability of the tributary and its adjacent wetlands (if any) the ability of the tributary and its adjacent wetlands (if any) o provide aquatic o provide aquatic

habitat that supports biota of a traditional navigable waterhabitat that supports biota of a traditional navigable water–– the ability for adjacent wetlands to trap and filter pollutants the ability for adjacent wetlands to trap and filter pollutants or store flood or store flood

waters waters –– the ability to maintain water qualitythe ability to maintain water quality

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CWA JurisdictionCWA JurisdictionCertain ephemeral waters in the arid west are distinguishable Certain ephemeral waters in the arid west are distinguishable

from the geographic features described below where such from the geographic features described below where such ephemeral waters are tributaries and may have a significant ephemeral waters are tributaries and may have a significant nexus to nexus to TNWsTNWs. .

Certain geographical features (e.g., ditches, canals) that Certain geographical features (e.g., ditches, canals) that transport relatively permanent (continuous at least transport relatively permanent (continuous at least seasonally) flow directly or indirectly into seasonally) flow directly or indirectly into TNWsTNWs or between or between two (or more) waters of the U.S., including wetlands, are two (or more) waters of the U.S., including wetlands, are jurisdictional waters regulated under the CWA. jurisdictional waters regulated under the CWA.

Certain geographic features (e.g., swales, ditches, pipes) may Certain geographic features (e.g., swales, ditches, pipes) may contribute to a surface hydrologic connection where the contribute to a surface hydrologic connection where the features:features:–– replace or relocate a water of the U.S., or replace or relocate a water of the U.S., or –– connect a water of the U.S. to another water of the U.S., or connect a water of the U.S. to another water of the U.S., or –– provide relatively permanent flow to a water of the U.S.provide relatively permanent flow to a water of the U.S.

US Army CorpsUS Army Corpsof Engineersof Engineers Ditches, Swales, & Ditches, Swales, & ErosionalErosional

FeaturesFeatures

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CWA JurisdictionCWA JurisdictionCertain geographic features generally are Certain geographic features generally are

not jurisdictional waters:not jurisdictional waters:•• Swales, Swales, erosionalerosional features (e.g. gullies) features (e.g. gullies)

and small washes characterized by low and small washes characterized by low volume, infrequent, and short duration volume, infrequent, and short duration flow flow

•• ditches (including roadside ditches) ditches (including roadside ditches) excavated wholly in and draining only excavated wholly in and draining only uplands and that do not carry a relatively uplands and that do not carry a relatively permanent flow of waterpermanent flow of water

•• uplands transporting over land flow uplands transporting over land flow generated from precipitation (i.e., rain generated from precipitation (i.e., rain events and snowmelt) events and snowmelt)


RGLsRGLs

Documentation PracticesDocumentation Practices–– Approved JDsApproved JDs–– PrioritizationPrioritization–– Field VisitsField Visits–– Coordination for Coordination for NWPsNWPs

•• Ditches Ditches –– Irrigation: Construction & MaintenanceIrrigation: Construction & Maintenance–– Drainage: MaintenanceDrainage: Maintenance

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US Army Corps US Army Corps Of EngineersOf Engineers USACE HQ Regulatory Web Page:USACE HQ Regulatory Web Page:

Link:www.usace.army.mil/inet/functions/cw/cecw/regLink:www.usace.army.mil/inet/functions/cw/cecw/reg//